Investigate reporters, but only when there’s something to investigate

The emerging conservative line on the Obama administration’s aggressive investigations of journalists is that national security leaks should be dealt with by going after the leaker, not the reporter. I’ve heard this line from a number of conservative commentators, most notably Karl Rove.

I couldn’t disagree more. Reporters are not above the law. And, as John has explained, the law (per the Espionage Act, 18 US Code Section 793) prohibits the publication of classified information where such publication will damage the United States. Here is the relevant language:

Whoever, lawfully having possession of…information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates…the same to any person not entitled to receive it…shall be fined under this title or imprisoned not more than ten years or both.

Moreover, it makes no sense to enforce this law exclusively by investigating the leakers. Reporters violate the law in the open by publishing stories. Leakers violate the law behind closed doors by talking to reporters.

Good reporters don’t reveal confidential sources. Typically, therefore, investigating the reporter will be the only practical way to investigate the leaker.

The problem with the Obama Justice Department’s investigation of AP and Fox News’ James Rosen is not that reporters are being investigated aggressively. The problem is that the case that these reporters damaged American interests through their reporting seems thin to non-existent.

The temptation when yet another Obama administration scandal erupts is to reach for the nearest available argument with which to cast the administration in the worst possible light. But the temptation should be resisted if it entails making bad arguments, especially when the bad arguments display an insufficient regard for our national security.